Several property owners in Sunnyside Orchards subdivision, located between Stevensville and Florence along the Eastside Highway, have filed a federal lawsuit against the county; developers Donald and Alexandra Morton and Sunnyside Orchards LLC; realtor Lee Foss and Foss Realty Inc; Western Montana Excavation; and Starlight Interests, LLC, a Georgia LLC. The plaintiffs and the development company all own property along Teddy Bear Lane and Northview Drive where the plaintiffs allege a road, which they call the “Foss Road,” was built without a permit across their properties to connect the other two existing roads.
On February 14, 2017, one of the plaintiffs, Brad Magruder, filed a road abandonment petition asking the county to abandon its undeveloped roadway easement between Teddy Bear Lane and Northview Drive. But the plaintiffs claim that instead of holding a meeting on the petition, the commissioners “created an informal policy or custom in direct response to the Plaintiffs’ Petition, making it a requirement for 100% of the surrounding landowners to sign the road abandonment petition before the County would act on it.” It is referred to in the lawsuit as the 100% Rule.
Plaintiffs allege that in June the excavating company and Foss, working on behalf of Sunnyside Orchards LLC, came in without authorization from anyone and removed gates, fencing, trees and vegetation belonging to the plaintiffs and proceeded to grade and fill the “Foss Road.” The commissioners later emailed one of the plaintiffs stating that no hearing was being held on the abandonment petition because of the 100% Rule. The commissioners did hold a meeting in August to discuss the “Foss Road” issue, but not the petition for abandonment, they claim. The meetings on the road were continued for months but no action was taken.
Then, in April 2018, they held a public hearing to create a right-of-way ordinance for the Orchard Tracts all over the county. No action was taken. But three days later, and more than a year after Magruder submitted a corrected petition, the Commissioners were asked by their administrator about moving forward on the plaintiffs’ petition. Plaintiffs allege that the administrator was told by one or more of the Commissioners to refund the $150 fee.
On November 16, 2018, the plaintiffs submitted a notice of claim to the County seeking damages and declaratory relief on their constitutional and tort claims. The County denied the plaintiffs’ request for damages and declaratory relief and instead offered to hold a public hearing on their petition two years after the corrected petition was submitted by the plaintiffs.
The plaintiffs claim that both their procedural and substantive federal rights to due process were violated by the County and Commissioners’ “delaying and deceptive conduct in refusing to properly process, investigate, hear, and issue a decision on the Plaintiffs’ petition.” They also allege federal violations of the Takings Clause, the Equal Protection Clause and the Fourth Amendment to the U.S. Constitution.
Plaintiffs also allege violations of their rights to due process as well as violations of the takings clause, right to privacy and equal protection under Montana’s Constitution.
Additional charges of trespass, nuisance and negligence are included.
The plaintiffs, including property owners Nicole Croy, Jeffrey and Cam Collins, Shaen and Jody McElravy, Karen and Ronald Hayward, and Brad Magruder, are asking for a jury trial and unspecified damages.
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